McCurley v. State

Court of Appeals of Georgia, Second Division

May 22, 2018

MCCURLEYv.THE STATE.

MILLER, P. J., ANDREWS and BROWN, JJ.

ANDREWS, Judge.

Matthew
Ryan McCurley was found guilty by a jury of various traffic
offenses including driving a vehicle under the influence of
alcohol in violation of OCGA § 40-6-391 (a) (1). He
filed a timely motion for a new trial which was denied by the
trial court on July 18, 2014. On January 15, 2016, McCurley
filed a motion which asserted: (1) that he never received
notice from the court of the July 18, 2014 order denying his
motion for a new trial; (2) that on November 18, 2014, the
trial court filed an order granting him an out-of-time appeal
based on the court's finding that he did not receive
notice of the court's July 18, 2014 order; and (3) that
he never received notice or a copy of the court's
November 18, 2014 order granting him an out-of-time appeal.
Based on these assertions, the motion sought an order from
the trial court setting aside the July 18, 2104 order denying
his motion for new trial and re-entering the order so that he
has 30 days from the re-entered order to file a direct appeal
from his traffic offense convictions. McCurley filed this
direct appeal from the trial court's August 9, 2017 order
denying the January 15, 2016 motion. Pierce v.
State, 289 Ga. 893, 893 (717 S.E.2d 202) (2011) (denial
of motion asserting lack of notice of appealable order is
directly appealable). For the following reasons, we affirm.

1.
McCurley claims that, because the trial court failed to
provide him with notice of its orders as required by OCGA
§ 15-6-21 (c), the court erroneously denied him the
right to file the out-of-time appeal granted by the court,
and erroneously denied his motion to set aside and re-enter
the court's order denying his motion for new trial.

Under
OCGA § 15-6-21 (c), "it shall be the duty of the
judge to file his or her decision with the clerk of the court
in which the cases are pending and to notify the attorney or
attorneys of the losing party of his or her decision."
The court's duty to give notice under OCGA § 15-6-21
(c) applies to decisions on motions and final judgments.
Wright v. Young, 297 Ga. 683, 683 (777 S.E.2d 475)
(2015). Pursuant to OCGA § 5-6-38 (a), any appeal from a
judgment of conviction in a criminal case must be filed
within 30 days after the entry of the order finally disposing
of the motion for new trial. Where a criminal defendant
claims that the notice required by OCGA § 15-6-21 (c)
was not given after entry of the appealable order denying a
motion for new trial, the proper process is for the defendant
to file a motion in the trial court to set aside the order or
to request an out-of-time appeal. Veasley v. State,
272 Ga. 837, 838-839 (537 S.E.2d 42) (2000). When the
required notice is not given, the trial court should: (1)
grant the motion to set aside and re-enter the order, which
gives the defendant a new 30 day appeal period from the
re-entered order; or (2) grant the request for an out-of-time
appeal, which gives the defendant 30 days from the grant to
file an appeal. Id. at 838; Rowland v.
State, 264 Ga. 872, 876 (452 S.E.2d 756) (1995). In
considering the motion to set aside or the request for an
out-of-time appeal, the determination for the trial judge
"is not whether the [defendant] knew or should have
known that [the appealable order] had been entered, but
whether the trial court carried out its statutory duty to
notify the [defendant]." Wright v. Wright, 300
Ga. 114, 116 (793 S.E.2d 96) (2016). The duty to notify under
OCGA § 15-6-21 (c) requires only that the trial court
give notice to the losing party. Wright, 297 Ga. at
684 n.3. "If the trial court has in fact given notice,
then a motion to set aside [or a request for an out-of-time
appeal] may be properly denied whether or not the losing
party actually received the notice." Id.

The
record shows that, after the trial court entered an order on
July 18, 2014 denying McCurley's motion for new trial,
the court entered an order on November 18, 2014 which stated
that "by the agreement and consent of both parties"
McCurley was granted an out-of-time appeal "because
neither Defendant nor his attorneys received a copy of the
Court's [July 18, 2014 appealable order] in this
matter." As set forth above, McCurley filed a motion on
January 15, 2016 which claimed that he did not receive the
required notice of these orders and seeking an order setting
aside and re-entering the court's order denying his
motion for new trial.

The
trial court held an evidentiary hearing on the January 15,
2016 motion where evidence showed that, based on the
representation by McCurley's attorneys to the prosecutor
that they did not receive notice of the trial court's
order denying the motion for new trial, the court entered an
order, consented to by the parties, granting McCurley an
out-of-time appeal. The trial court's administrative
assistant testified at the hearing that, on the day the judge
signed the order granting the out-of-time appeal, he mailed a
copy of the order to both of McCurley's attorneys at the
addresses listed for the attorneys in the court's
records. The trial court's order denying the January 15,
2016 motion found that the court's administrative
assistant timely mailed the order granting the out-of-time
appeal to McCurley's attorneys, and that the court's
records did not contain any indication that these mailings
were returned. Based on this record, the issue presented by
McCurley's motion was whether the trial court carried out
its duty under OCGA § 15-6-21 (c) to notify McCurley of
the court's entry of the order granting the out-of-time
appeal. We find that the court's order denying the motion
contained findings supported by evidence in the record
sufficient to support denial of the motion on the basis that
the court satisfied its duty to notify under OCGA §
15-6-21 (c). McCurley's right to file an out-of-time
appeal from his conviction on the traffic offenses expired 30
days after entry of the court's order granting the
out-of-time appeal. Rowland, 264 Ga. at 876.

2.
Although McCurley argues that errors occurred during the
trial of the charged offenses, his appellate brief concedes
that, in the absence of a timely appeal from the judgment of
conviction, there is no basis to assert the alleged errors in
this appeal.

Judgment
affirmed.

Miller, P. J., and ...

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